206 F.2d 897 | 2d Cir. | 1953
Lead Opinion
This appeal presents the question whether the District Judge erred in refusing to issue a second writ of habeas corpus to review a decision of the Board of Immigration Appeals which denied the application of a deportable alien for suspension of deportation pursuant to section 19 of the Immigration Act of 1917 as amended, 8 U.S.C.A. § 155(c), of which the relevant portion reads as follows:
*899 “In the case of any alien * * * who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * suspend deportation of such alien * * * if he finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien. * * * ”1
The appellant is an alien of Italian nativity and citizenship who entered the United States in 1932 with intent to remain permanently and without possessing an immigration visa. He has resided here continuously since entrv, was married in 1949 to a legally residencien, and has a two year old American-born child. Proceedings for his deportation were instituted in 1947 and, after a hearing, he was found deportable on the charge of illegal entry without an immigration visa. The proceedings were later reopened to receive further evidence concerning his application for suspension of deportation. Such discretionary relief was denied by the hearing officer in May 1952. His decision was thereafter adopted by the Acting Commissioner and was affirmed by the Board of Immigration Appeals on April 3, 1953. The Board’s opinion reviewed the evidence and concluded with the statement: “After consideration of all the facts and circumstances in the case, wc believe that the applications for relief should be denied as a matter of administrative discretion.” Thereafter the appellant was taken into custody for deportation and he promptly sued out a writ of habeas corpus which Judge -Noonan dismissed by order entered May 5, 1953.
An order dismissing one writ of habeas corpus does not formally estop the relator from suing out another on the same grounds.
The third ground of complaint, that “in all similar cases” the Board had exercised its discretion in favor of deportable aliens convicted of crime is completely without merit. Suspension of deportation is a discretionary matter. In the exercise of its discretion it is permissible for the Board to take into account rhe alien’s earlier bad conduct. United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371. The facts set out in the Board’s opinion respecting his criminal record and his tenuously explained affluence were ample justification for denial of discretionary relief. Mor does the allegation that the appellant; was treated differently from other aliens similarly situated raise a triable issue of fact. Determination of what weight to give to a prior conviction of crime necessarily depends upon the circumsiances of the particular case. No two cases can be precisely similar. The appellant tries to bring himself within the scope of United States ex rel. Knauff v. .McGrath, 2 Cir., 181 F.2d 839, vacated as moot, 340 U.S. 940, 71 S.Ct. 504, 95 L.Ed. 678, where it was alleged that the uniform practice was to defer deportation in all cases where a bill of relief was pending in Congress. There the uniform practice was a provable fact. It is not such when, as here, the alleged uniform practice relates to the appraisement of the moral reformation of convicted deportees.
Order affirmed.
. This statute was repealed by the Immigration and Nationality Act of June 27, 1952, effective 180 days thereafter, and the provisions as to discretionary suspension of deportation were replaced by section 241 of the 1952 Act, 8 U.S.C.A. § 1254. However, the “savings clauses” of the later Act kept the earlier statute alive for pending proceedings, and provided that “An application Cor suspension of deportation under section 19 of the Immigration Act of 1917, as amended * * * which is pending on the date of enactment of this Act shall be regarded as a proceeding within^the meaning of this subsection.” 8 U.S.C.A. § 1101 note. P.L. 414, § 405(a), 66 Stat. 280. The appellant’s application was pending until the Board of Immigration Appeals rendered its decision on April 3, 1953.
. Judge Noonan’s memorandum decision reads: “A review of the record as a whole, fails to demonstrate that there was present a clear abuse of discretion or clear failure to exercise discretion, Absent either element this court cannot review the exercise of discretion by the Board of Immigration Appeals. (United States ex rel. Adel v. Shaughnossy [2 Cir.], 183 F.2d 371.)”
. The appellant's brief on the present apPea^ admits that dismissal of the first wrlt was correct:-
. Salinger v. LoiseI 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 606, 156 A.L.R. 240, certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630.
. Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 68 L.Ed. 999; United States ex rel. McCann v. Thompson, supra; United States ex rel. Karpathion v. Jordan, 7 Cir., 153 F.2d 810, certiorari denied 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639.
. “9. That on April 6, 1945, favorable discretionary relief was' exercised herein in the form of .voluntary departure and preexamination, but my husband was unable to take advantage of this because the American Consul refused to issue a visa to him on the ground that he had been convicted of a crime in 1934.
“10. That the aforesaid criminal ground may be waived by the Board of Immigration Appeals and in all similar cases has been waived by the Board of Immigration Appeals.
“11. Upon information and belief that the Department of Justice maintains a confidential file with respect to my husband.
“12. Upon information and belief that on or about October 2, 1952, the Attorney General announced at a press conference that he planned to deport certain so-called ‘unsavory characters.’
“13. That upon information and belief, on or about October 2, 1952, the Attorney General prepared a list of one hundred individuals whoso deportation he sought in accordance with the announcement made at his press conference of October 2, 1952.
“14. Upon information and belief, that included in this list of one hundred persons was the name of my husband, Joseph Accardi.
“15. Upon information and belief, that the aforesaid list of one hundred individuals, including the name of my husband, was circulated by the Department of Justice among all its employees connected with the Immigration Service and the Board of Immigration Appeals.
“16. Upon information and belief, that because of the listing of my husband’s name on this confidential list and because of consideration of matters outside the record of his immigration hearing, discretionary relief has been denied to permit my husband to adjust his immigration status to that of a permanent resident.
“17. That application was made during the month of Hay, 1953, for reconsideration of my husband’s case and such reconsideration has resulted in a reailirmance of the order of deportation herein.
“18. Upon information and belief that the Attorney General has issued several press releases with regard to my husband’s case during the month of April, 1953, and because of the unfavorable publicity accorded to this case at the instigation of the Attorney General, it has not been possible to secure a fair reconsideration and rehearing of this matter.
“19. That the decision to deny favorable discretionary relief herein was prejudged by the Attorney General on October 2, 1952, when he included my husband’s name in the list of one hundred so-called ‘unsavory characters’ and since that time it has been impossible for my husband to secure fair consideration of his case.”
. See also United States ex rel. Giacalone v. Miller, D.C.S.D.N.Y., 86 F.Supp. 655, 657; United States ex rel. Bauer v. Shaughnessy, D.C.S.D.N.Y., 115 F.Supp. --; Chavez v. McGranery, D.C.S.D.Cal., 108 F.Supp. 235.
Dissenting Opinion
(dissenting).
I dissent because 1 think the district judge erred in refusing to hear testimony, offered by the relator, to show that the hearing before the Board was a farce.
Suppose the Supreme Court were secretly to notify all judges of inferior federal courts that in the future it would reverse all judgments they entered if favorable to certain designated persons. Accardi’s wife (in the second habeas corpus petition) asserts that we have here something of that sort — but worse. Let us see:
By a valid regulation,
Relator alleged in the second habeas corpus petition that the pre-hearing decision consisted of the inclusion of Accardi’s name in a secret list of aliens whom the Attorney General had decided must be expelled from the United States, this secret list having been circulated in October 1952 among all the Attorney General’s subordinates in the Department of Justice, including the Board, and having since been approved with reference to Accardi by the present Attorney General — all previous to the administrative hearing on Accardi’s petition for discretionary relief. Relator argues, in effect, that, since the Attorney General was the Board’s superior, and since he could reverse any decision made by the Board concerning such relief,
Obviously, we would reverse if the Board in its opinion had said: “We deny relief because the Attorney General has already decided, previous to the application for relief, that Accardi is not to receive any discretionary relief.” So the crucial question here is whether relator had a right to prove, by evidence outside the record, that in truth such was the ground of the Board’s action. My colleagues, accepting the district judge’s view, take this position: Even if it is a fact that Accardi’s application for relief was unlawfully prejudged by the Attorney General so that the Board’s hearing was a pure pretense, nevertheless no court can pay any attention to that fact. Why? Because, so my colleagues maintain, (1) the record of the administrative hearing and the opinion of the Board contain no reference to the Attorney General’s list, and, on their face, disclose nothing to indicate any irregularity; (2) the courts lack power to go behind such an administrative record; (3) relator’s allegations as to the Attorney General’s prejudgment are “on information and belief.”
I cannot agree. Respondent’s “nice, sharp quillets of the law” should not take us in. There is no doctrine that a court may never go outside such an official record to discover whether an official himself unlawfully acted on matters outside the record. Having served for a considerable period as an administrative officer, I am fairly callous to the cries of men who denounce all such officers as power-hungry bureaucrats, and I am perhaps unusually aware of the danger to the workings of government if any administrative officer could be dragged into court, to stand trial, on a mere suspicion of impropriety behind the scenes. However, there would be greater danger to democratic government in judicial acceptance of every administrative record as final and invulnerable, no matter how grave and serious the charges against the official.
While ordinarily a court must confine itself to the administrative record,
Of course, an attack on an official’s decision, by recourse to off-the-record evidence, is not allowed if the allegations are vague: Legality should be more than well-ordered paper work, but allowable peering behind the paper facade has its limits. One may not compel an official to submit to courtroom interrogation in the search for possible concealed, unlawful behavior, unless one first brings forward some striking traces of it. As a consequence, well-concealed misconduct may escape judicial correction.
Finally, I disagree with my colleagues when they say that no attention may be paid to the allegation of secret prejudgment by the Attorney General because it is made on information and belief. Surely we would not refuse to act in a case like Root Refining on a sufficiently specific charge that a judge had been bribed to decide the case, merely because the facts, necessarily not within the first-hand knowledge of the party so charging, were stated on such information and belief. In a variety of circumstances, it has been held that such an allegation suffices where, as here, the asserted facts are thus not within affiant’s personal knowledge.
. 8 C.F.R. (1949 ed. Pocket Part.) §§ 150.7(a), (b), 150.11(b), 150.13(b), and Part 151, esp. §§ 151.2(c), 151.3(e), 151.5(e); note infra.
. See, e.g., Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Mastrapasqua v. Shaughnessy, 2 Cir., 180 F.2d 999,1001.
. 8 C.F.R. (1949 ed.) §§ 90.3, 90.12; cf. 8 C.F.R. (Rev. ed. 1952) § 1.2.
. See, e.g., Bridges v. Wixon, 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103.
. Cf. Alexiou v. McGrath, D.C., 101 F. Supp. 421.
. See note 2a, supra.
. Pertinent allegations of the petition were:
“12. Upon information and belief that on or about October 2, 1952, the Attorney General announced at a presé conference that he planned to deport certain so-called ‘unsavory characters.’
“13. That upon information and belief, on or about October 2, 1952, the Attorney General prepared a list of one hundred individuals whose deportation he sought in accordance with the announcement made at his press conference of October 2, 1952.
“14. Upon information and belief, that included in this list of one hundred persons was the name of my husband, Joseph Accardi.
“15. Upon information and belief, that the aforesaid list of one hundred individuals, including the name of my husband, was circulated by the Department of Justice among all its employees connected with the Immigration Service and the Board of Immigration Appeals.
“16. Upon information and belief, that because of the listing of my husband’s name on this confidential list and because of consideration of matters outside the record of his immigration hearing, discretionary relief has been denied to permit my husband to adjust his immigration status to that of a permanent resident. * * *
“19. That the decision to deny favorable discretionary relief herein was prejudged by the Attorney General on October 2, 1952, when he included my husband’s name in the list of one hundred so-called ‘unsavory characters’ and since that time it has been impossible for my husband to secure fair consideration of his case.
“20. That the present Attorney General has continued the policies and practices of his predecessor with reference to my husband’s case.”
. Relator’s counsel, on the hearing of the petition, said he understood “that former counsel in this case spoke to the Commissioner and the Commissioner told him, ‘We can’t do a thing in your case because the Attorney General has his name on that list of a hundred.’ ”
. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429; Chicago, B. & Q. R. Co. v. Babcock, 204 U.S. 585, 588, 593, 27 S.Ct. 326, 51 L.Ed. 636; Fayerweather v. Ritch, 195 U.S. 276, 306-307, 25 S.Ct. 58, 49 L.Ed. 193.
. See Schwab v. Coleman, 4 Cir., 145 F.2d 672, 156 A.L.R. 355.
. See Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.
. See, e.g., Broadcast Music v. Havana Madrid Restaurant Corp., 2 Cir., 175 F.2d 77, 80.
a. See, e.g., Berger v. United States, 255 U.S. 22, 34-35, 41 S.Ct. 230, 65 L.Ed. 481; Kelly v. United States, 9 Cir., 250 F. 947, 948-949; Creckmore v. United States, 8 Cir., 237 F. 743.
. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447.
. “For ye make clean the outside of the cup and platter, but within they are full of extortion and excess.” Matt. 23, 25.